[Cite as Jeffers v. Fair, 33 Ga. 347
(1862). NOTE: This decision concerns the army and militia clauses of the
Confederate Constitution which were identical to the Federal clauses. Analyzing
the tension between voluntary and compelled service, the history of ratification
of the Federal Constitution, the court did not discuss the Federal right to arms
provision nor its identical Confederate provision. This decision should be
compared to the Supreme Court's 1990 decision, Perpich v. Dept. of
Defense, 496 U.S. 334
(1990). Starting at page 354 the
Confederate court begins an examination of the ratification of the Federal
Constitution. It opens this discussion with the remark, "[t]he exerperience
which induced its adoption was our experience. Whatever light, therefore, may be
derived from American history ... are legitimate aids in the further prosecution
of our inquiry." Judge Lumpkin was a member of the three judge panel in
Jeffers, sixteen years after authoring the opinion in Nunn
v. State, 1 Ga. 243
(1846). The following note [347.1]
appeared on pages 347-348.]

1. The Act of the Congress of the Confederate
States of America, approved 16th April, 1862, entitled "An Act to
further provide for the public defense," and the Act of the same
Congress, approved 27th September, 1862, entitled "An Act to amend
an Act, entitled An Act to further provide for the public defense," are
constitutional.

Habeas corpus, from Baldwin county, decided
by Judge Iverson L. Harris, at Chambers.

A sufficient statement of this case will be found
in the able opinion of the Court as pronounced by Mr. Justice Jenkins.

McKinley, for plaintiff in
error.

A. H. Kenan and Blandford, contra.(p.348)

By the Court.--Jenkins,
J., delivering the opinion.

The sole question presented by this record for the
consideration of the Court, is the constitutionality of two Acts passed by the
Congress of the Confederate States; the one approved April 16th,
1862, entitled "An Act to further provide for the public defense;" the
other approved September 27th, 1862, entitled "An Act to amend an
Act entitled an Act to further provide for the public defense." From
those Acts alone the defendant in error derives his authority to hold the
plaintiff in custody, whilst the latter, admitting that he is within the
purview, insists that they are unconstitutional, and the authority claimed under
them void.

It is enough to say of those Acts, in this connection, that they
authorize the President of the Confederate States to call out and to place in
the military service of the Confederate States for three years, unless the war
shall have sooner ended, all white men who are residents of the Confederate
States, between certain ages, who are not legally exempt from military
service.

The Court is impressed with the importance of the question, and the
responsibility involved in its decision, and have not failed to give it careful
and anxious consideration.

The inquiry and course of argument pursued bring under review the
following clauses of the Constitution of the Confederate
States. They are contained in the 8th section of the 1st
article, and numbered as herein noted: The Congress shall have power: 12.
To raise and support armies; but no appropriation of money to that use shall be
for a longer term than two years; 15. To provide for the calling forth the
militia to execute the laws of the Confederate States, to suppress insurrections
and repel invasions; 16. To provide for organizing, arming and disciplining the
militia, and for governing such part of them as may be employed in the service
of the Confederate States, reserving to the States, respectively, the
appointment of the officers and the authority of training the militia according
to the discipline prescribed by Congress; 18. To make all laws which shall
(p.349)be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by this
Constitution in the Government of the Confederate States, or in any department
thereof.

Before considering the extent and proper construction of the grant
of "power to raise armies" contained in the 12th
clause above recited, we must distinguish between it and the grant of
"power to call forth the militia," etc., contained in the 15th clause.

In the argument presented against the constitutionality of the Acts
in question, we are called upon to construe these two clauses together as parts
of the same grant. We regard them as wholly distinct. Armies raised under the
12th clause are instrumentalities whereby Congress executes the power to carry
on war, whether offensive or defensive, whether on our own or foreign
territory.

The individuals composing armies are separated from the mass of our
population, and withdrawn from the ordinary civil pursuits during the time of
their enlistment, whether in peace or in war. Armies are at all times and in all
places subject to the Government of the Confederate States; they are at no time
and under no circumstances, subject to any State authority. The militia may be
defined a body of citizens enrolled for military discipline. They are enrolled
by State authority with reference to State boundaries; they are organized,
officered and disciplined by State authority, the Confederate Congress having
authority (for the sake of uniformity) only to prescribe the mode of
organization and discipline. They are not separated from the mass of their
fellow-citizens, nor withdrawn from their ordinary pursuits, save occasionally
for drill or for special and usually short service in the field. For such
special service they may be called forth either by the authority of the State
wherein they are enrolled, or by that of the Confederate States; but the power
of the latter to call forth is limited to three special emergencies. viz.: to
execute the laws of the Confederate States, to suppress insurrections, to repel
invasions. It is apparent, then, that they can not be used in offensive war on
foreign soil.(p.350)

Armies raised under the 12th clause constitute the physical force,
in conjunction with the navy, mainly relied upon for national defense, and
exclusively for offensive, extra-territorial war in the assertion of national
rights. The militia, when called forth, are citizen soldiery, designed to be
used in the special emergencies, at points where there may be no portion, or an
inadequate portion of the regular army.

They are not intended at any time to be merged in any army of the
Confederate States, nor to be substituted for it; but as a separate organization
to come in aid of it. Doubtless the constitutional provisions relative to the
militia were adopted in furtherance of the American policy of maintaining small
standing armies in times of peace.

But the grants of power "to raise armies" and "to call forth the
militia" are entirely separate and distinct--are to be construed together for
the purpose of restricting or enlarging either. Any such attempt must lead to
the most embarrassing confusion, the necessity of avoiding which became apparent
in the course of the argument submitted, and seemed to call imperatively for
this preliminary distinction.

2d. It is insisted "that the Confederate Congress has no power to
raise armies by compulsion, but is wholly dependent for military forces upon
the voluntary enlistment of men; and if it need more force than its
armies thus raised and its navy, its only resource is to "call forth the militia
of the State." It is clear under the view we have taken, that Congress can raise
armies under the twelfth clause, only by voluntary enlistment or by compulsory
enrollment, and we are now asked so to construe the grant as to limit them to
the former mode. The limitation now considered is, as to means only;
whether or not there be any other constitutional limitation of the power we will
hereafter consider. The acts of Congress under review, authorize compulsory
enrollment of citizens. The clause of the Constitution, in virtue of which the
power thus exercised is claimed, is very general in its terms--neither
specifying nor prohibiting any means.

Let the phraseology be fixed in the mind of the inquirer. The
Congress shall have power to raise armies, etc. Language (p.351)could not express a broader, more general grant
of a specific power. We look in vain for the limitation to voluntary enlistment
as a means. Is there any difference between a grant of "power to raise
armies?" We think not. Yet had the latter form of expression been used, who
would have affirmed the existence of the limitation now insisted on? We
understand the rule of construction in such cases to be, that "an unqualified
grant of power gives the means necessary to carry it into effect." But the
proposed limitation reduces the grant to "bare authority to raise armies by
accepting" volunteers. Now this idea and the idea of a power to raise
armies, are widely different; and not less so are the terms appropriate to the
expression of the one, and the other. Presuming that the framer of the
Constitution used the words employed in their ordinary unambiguous significance,
we hold that the clause, ex vi termini, express a grant of
power--of power commensurate with the object--of power over the
populations of the several States, entering into and becoming component parts of
the Confederate States of America. Undoubtedly, voluntary enlistment as a means,
would always be preferred, when efficacious, to compulsory enrollment, but in
many cases, a limitation to the former would render the power barren. So obvious
is the necessity of compulsion to render the grant effective that those holding
the position we combat admit that it may be resorted to, but only through the
agency of the several States.

The admission places compulsory enrollment in the relation of
incident to the power to raise armies. But their view imputes to the framers of
the Constitution this absurdity, viz.: That having divested the States of the
powers to declare war and to raise armies, and having vested those powers in the
Confederate Congress, and knowing that the latter power would be incomplete
without compulsory enrollment, they nevertheless left it exclusively in the
hands of the States. Let us resolve this logic into the form of a syllogism.
Compulsory enrollment is a proper incident of the power to raise armies; the
Confederate Congress have, and the States severally have not the power
to raise armies; ergo, (p.352)the
Congress may not, but the several States may resort to
compulsory enrollment.

3d. Again, if the grant contained in the twelfth clause (which we
have thus far considered per se) fall short of authorizing the Congress
to resort to compulsory enrollment, in execution of the power, surely the defect
is supplied by the eighteenth and last clause, which applies equally to all the
preceding clauses of the section. It confers "power to make all laws which shall
be necessary and proper for carrying into effect the foregoing powers," etc. How
does this comport with the idea, that should compulsion become necessary, in the
process of raising armies, the Congress must appeal to the States to
use it?

We have held that the power to raise armies is separate and distinct
from the power to call forth the militia, and the only means to which Congress
can resort in execution of the power, are voluntary enlistment and compulsory
enrollment.

Conceding then, for the argument, that the latter is not
authorized by the twelfth clause, we are constrained to hold that it is
authorized by the eighteenth clause whenever voluntary enlistment shall fail, or
cease to promise necessary results. We by no means concede that in a time of
flagrant war the Congress would be constrained to wait until that resource had
been wholly exhausted of success before resorting to other means. Under such
circumstances promptness is an indispensable element in raising armies. Delay
would often amount to failure. That scheme which promises the greatest
attainable promptness and efficiency is both necessary and proper. Of these the
Congress must be the judges, because in them is vested the power, and upon them
rests the responsibility of declaring war and raising armies to prosecute it.
Those who would thus limit the power of Congress, seem to forget that voluntary
enlistment is not mentioned as a means in the Constitution. Upon what then rests
their limitation? Clearly on their own notions of fitness and propriety. And
upon these points how variant are men's ideas! They are referable to no
criterion, measurable by no standard. Something more weighty than vague
abstractions (p.353)must be invoked to induce
us to fetter the government in the exercise of a power, upon the vigor of which
depends our national existence.

4th. But it is further argued that the proceeding by which the
plaintiff in error is held in custody, under whatever clause of the Constitution
attempted to be justified, is virtually calling forth the militia, and violates
the Constitution, in that it takes from the States the power of appointing
officers of the militia so called forth. This argument rests upon the fact that
the men now being enrolled for service in the army have been previously enrolled
by the States as militia men. The simple and obvious reply is, that the status
of the citizen is not merged in the militia-man; that the fact of enrollment
with the militia does not exempt him from other duties and liabilities of
citizenship. If it were so, and if the militia be so sacred a body that the
Confederate Government can not touch the individuals composing it, then would it
be improper for that Government to seduce them from it by the offer of bounties
and wages as an inducement to voluntary enlistment? The consequence would be
that in times like the present, when our access to foreign populations is cut
off, the Government charged with the conduct of the war would find it impossible
to raise armies, and the clause of the Constitution conferring that power would
be a dead letter when most necessary to the "general welfare."

5th. The points remaining to be considered are resolvable into this:
that the power claimed is a violation of the spirit (if not the letter) of the
Constitution, incompatible with State sovereignty, and subversive of the State
Governments. Having, as we think, established the existence of an express grant
of power claimed, we might well decline entering into so wide a field of inquiry
as that thus opened. The task would seem more appropriate to a body clothed with
authority to make or alter and amend the Constitution.

Yet as it has been pressed with great earnestness, and as under our
peculiar institutions, it is desirable not only that the National Government
should possess necessary powers, but that its possession of them should meet the
sanction of (p.354)public opinion, we will
consider this view. The objection rests upon this basis: that throughout the
Constitution there is manifested an intention to transfer from the States,
previously invested with all political powers, to the Confederate Government,
only such of them as are necessary to the attainment of the end for which it was
established, leaving the residuum unimpaired with the States. The
intention and its rectitude we fully recognize. We accept it as a governing
principle with the Convention that framed, and the several sovereign peoples
that adopted it. For the ascertainment of their intention regarding the power in
question ("to raise armies") we propose a candid application to the end in view
of this cardinal principle in the circumstances surrounding them. It is
eminently proper to state, first, the end proposed to be accomplished by the
adoption of the Constitution. A careful perusal of the instrument can not fail
to impress upon the mind of the inquirer the significant fact that in the
distribution of powers between the States and Confederate Government, the
regulation of internal affairs is left with the former, whilst the external
relations of all are committed to the latter. From this we deduce two
inferences--first, that the former were deemed fully competent to regulate the
civil conduct of individuals, and to promote their domestic prosperity in the
aggregate, and, therefore, all power necessary to those purposes remained with
them. Secondly, that they were incompetent severally to manage successfully the
vast machinery of international relations, and, therefore, for this purpose, a
common agent was constituted for them, and invested with necessary powers. The
controlling inducement then was the better and safer conduct of foreign
relations--the great end aimed at, the embodiment of such strength as would
deter encroachment, repel invasions and defend right in those relations. Our
Constitution (with a few exceptions not affecting this investigation) is a
liberal copy of the Constitution of the United States, under which our States,
until recently, confederated with others. The experience which induced its
adoption was our experience.

Whatever light, therefore, may be derived from American (p.355)history, and whatever authority from eminent
actors in the political arena, between the declaration of independence and our
secession from the Union, are legitimate aids in the further prosecution of our
inquiry. The Constitution of the United States had been preceded by articles of
confederation among the States, being their first experiment in a bond of union.
It had been tried in war and peace, and had been found defective. Prominent
among the defects thus developed was a want of power in the general Government
to raise revenue and to raise armies. The general Congress had authority "to
defray charges of war and other expenses, out of a common treasury;" but that
treasury "was to be supplied by the several States--the taxes for that purpose
to be laid by their several Legislatures." It had authority only to agree upon
the number of land forces, and "to make requisition upon each State for its
quota." Our forefathers learned from experience, gathered in the Revolutionary
War, that requisitions upon the States for their several quotas of land forces
were not met with equal promptness. The States most remote from the seat of war,
and least affected by its ravages, responded tardily or not at all.

Similar difficulties and delays occurred in raising revenue. Hence
resulted two serious consequences--the full number of forces agreed upon by
Congress, as necessary for defense, was never supplied, and the burthen of
actual supply of men and means pressed unequally upon the States. It will be
conceded that in furnishing her quota of men, each State had the power of
compulsory enrollment, and in furnishing her quota of money, the power of
compelling the payment of taxes. But the defect in the system was, that the
power of making war was vested in the general Congress, whilst the power of
raising revenue and armies remained with the States. The Congress could neither
act directly upon individual citizens nor compel the States to do so. It was to
remedy these defects in the old system that the framers of the Federal
Constitution proposed to give such ample power touching armies and revenue to
the new Government. The first testimony we adduce of the defects in the articles
of confederation and (p.356)the appropriate
remedy shall be from the father of his country. General Washington, whose
position as commander-in-chief of the revolutionary army gave him a clearer view
of these defects than a contemporary could possibly have, writes thus, in 1781,
in the midst of that war, to John Park Curtis, his friend and relative, then a
Senator in the Legislature of Virginia:

After insisting upon the "necessity of having a permanent force"
instead of "temporary enlistments and a reliance upon the militia," he
continues: "It must be a settled plan, founded upon system, order and economy,
that is to carry us triumphantly through this war. Supineness and indifference
to the distresses and cries of a sister State, where danger is far off, and a
general but a momentary resort to arms, when it comes to our doors, are equally
impolitic and dangerous, and prove the necessity of a controlling power in
Congress to regulate and direct all matters of general concern. The great
business of war can never be well conducted, if it can be conducted at all,
while the powers of Congress are only recommendatory; while one State yields
obedience and another refuses it, while a third mutilates and adopts the measure
in part only, and all vary in time and manner, it seems hardly possible that our
affairs should prosper, or that anything but disappointment can follow the best
concerted plans. The willing States are almost ruined by their exertions;
distrust and jealousy ensue. Hence proceed neglect, and ill-timed compliances,
one State waiting to see what another will do. This thwarts all our measures
after a heavy though ineffectual expense is incurred.

"Do not these things show, in the most striking point of view, the
indispensable necessity, the great and good policy of each State sending its
ablest and best men to Congress; men who have a perfect understanding of the
Constitution of their country; of its policy and interests, and of vesting
that body with competent powers?

"Our independence, our respectability, and consequence in
Europe, our greatness as a nation hereafter depend upon it. The fear of giving
sufficient powers to Congress, for the purpose (p.357)I have mentioned, is futile. A nominal head, which at
present is but another name for Congress, will no longer do. That honorable
body, after hearing the interest and views of the several States fairly
discussed and explained by their respective representatives, must dictate,
and not merely recommend and leave it to the States afterwards, to do as
they please, which, as I have observed before, is in many cases to do nothing at
all" (7 Spark's Writings of Washington, 442-3-4). We submit whether
anything short of the Constitution as it now is, and as we construe it, would
meet the views of Washington, as here expressed. Whilst the adoption of the
Constitution by the people of the States was an open question, its opponents
insisted that those provisions were inimical to the liberty of the citizen, and
that they would render the General Government too strong, and the State
Government too feeble. Its advocates drew their replies from their then recent
experience in peace and in war. In the State conventions assembled, to consider
and adopt or reject the Constitution, and through the medium of the press, these
conflicting opinions were urged with unrestricted freedom, and with the
unsurpassed ability evinced by the statesmen of that day. In those discussions,
the concentrated lights of history and of reason were brought to the aid of a
pure and elevated patriotism. We quote, in this connection, from the arguments
of distinguished advocates of this power, partly because their opinions are of
themselves high authority, but chiefly because those opinions having prevailed,
we are justified in assuming that their reasoning was accepted, in the adoption
of the Constitution, and in treating it is an index of intention. In the
Virginia Convention, Mr, Madison said: "The power of raising and supporting
armies is exclaimed against, as dangerous and unnecessary. I wish there was no
necessity of vesting this power in the General Government. But suppose a foreign
nation to declare war against the United States, must not the general
Legislature have the power of defending the United States? If, sir, Congress be
not vested with this power, any powerful nation, prompted by ambition or
avarice, will be invited by (p.358)our weakness
to attack us; and such an attack, by disciplined veterans, would certainly be
attended with success, when only opposed by irregular and undisciplined militia.
Whoever considers the peculiar situation of this country, the multiplicity of
its excellent inlets and harbors, and the uncommon facility of attacking it,
however much he may regret the necessity of such a power, can not hesitate a
moment in granting it." He then shows that the lack of power during the
Revolutionary War had driven the Government to purchase foreign aid by a cession
of territory, and concludes: "This fact shows the extremities to which nations
will go in cases of imminent danger, and demonstrates the necessity of making
ourselves more respectable. The necessity of making dangerous cessions and of
applying to foreign aid ought to be excluded." (3 Elliott's Debates,
112.) No candid mind will imagine that Mr. Madison was here offering the
necessity, whilst he deprecated it, of conferring on the General Government a
simple authority to accept volunteers for national defense, in a moment
of pressing danger. Mr. John Marshall, afterwards Chief Justice of the United
States, in the progress of the same debates, speaking of the powers to raise
revenue and to raise armies, says: "What are the objects of the national
Government? To protect the United States, and promote the general welfare.
Protection in time of war is one of its principal objects. Until mankind shall
cease to have ambition and avarice wars will arise.

"The prosperity and happiness of the people depend upon the
performance of these great and important duties of the General Government. Can
these duties be performed by one State? Can one State protect us and promote our
happiness? How then can these things be done? By the National Government only.
Shall we refuse to it power to do them? We are answered that the power may be
abused; that though the Congress may promote our happiness, yet they may
prostitute their powers to destroy our liberty. This goes to the destruction of
all confidence in agents. Would you believe that men who have merited your
highest confidence would deceive you? Would you trust them after (p.359)one deception? Why hesitate to trust the General
Government? The object of our inquiry is, is the power necessary, and is it
guarded? There must be men and money to protect us. How are armies to be
raised? Must we not have money for that purpose? * * * It is necessary
then to give the Government that power in time of peace which the necessity of
war will render indispensable, or else we shall be attacked unprepared.
* * * The propriety of giving this power will be proved by the history
of the world, and particularly of modern republics. I defy you to produce a
single instance where requisitions of several individual States, composing a
confederacy, have been honestly complied with.

"Did gentlemen expect to see such punctuality complied with in
America? We are told that the confederation carried us through the war. Had not
the enthusiasm of liberty inspired us with unanimity, that system would never
have carried us through it. It would have been much sooner terminated had the
Government been possessed of due energy. The inability of Congress, and the
failure of the States to comply with the constitutional requisitions, rendered
our resistance less efficient than it might have been. * * * If
requisitions will not avail, the government must have the sinews of war some
other way. Requisitions can not be effectual. They will be productive of delay,
and will ultimately be ineffectual." (3 Elliott's Debates, 226.)
Again, speaking of the danger of foreign aggression, he said "he would give the
General Government all necessary power. If anything be necessary, it must be so
to call forth the strength of the Union when we may be attacked, or when the
general purposes of America may require it." (3 Elliott's Debates,
233.)

In the New York Convention, Mr. Hamilton (who was also a member of
the Federal Convention) said: "We contend that the radical vice in the old
confederation is, that laws of the Union apply only to States in their corporate
capacity. Has not every man who has been in our Legislature experienced the
truth of this position? It is inseparable from the depositions of bodies who
have a constitutional power of resistance, to examine the merits of a law. In
this examination, (p.360)not being furnished
with those lights which directed the deliberations of the General Government,
and incapable of embracing the general interests of the Union, the States have
almost uniformly weighed the requisitions by their own local interests, and have
only executed them so far as answered their particular convenience and
advantage. Hence there have been thirteen different bodies to judge the measures
of Congress, and the operations of Government have been distracted by their
taking different courses. Those which were to be benefited have complied with
the requisition, others have totally disregarded them. Have not all of us been
witnesses of the unhappy embarrassments which resulted from these proceedings?
Then, after some details, showing that two States only "had perfectly discharged
their federal duty," "that two others had been totally delinquent" and the
remaining nine partially so, he continues: "What, sir, is the cure for this
great evil? Nothing, but to enable the national laws to operate on
individuals in the same manners as those of the States do. This is the true
reasoning upon the subject, sir. The gentlemen appear to acknowledge its force;
yet while they yield to the principle, they seem to fear its application to the
Government." (2 Elliot's Debates, 231-3.) Those who will take the
trouble to read this speech will perceive the speaker did not refer exclusively
to requisitions either for men or for money, but to the whole subject of
requisitions upon which the Congress of the Confederation were dependent for
both. His reasoning is alike applicable to each. Indeed, it must be so in the
nature of things. The same motives which would induce neglect of or compliance
with, on description of requisitions, would lead to a like result with regard to
the other. In the Connecticut Convention, Mr. Elsworth, having enforced, by
historical examples, the necessity in confederated sovereignties of coercive
power in the Federal Government, continues: "But to come nearer home, Mr.
President, have we not seen and felt the necessity of such a coercive power?
What was the consequence of the want of it during the late war, particularly
towards the close? A few States bore the burden of the war. While (p.361)we and one or two more of the States were
paying eighty or a hundred dollars per man to recruit the Continental army, the
regiments of some States had scarcely men enough to wait on their officers.
* * * But I do not wish to continue the painful recital; enough has
been said to show that a power in the General Government to enforce the decrees
of the Union is absolutely necessary. The Constitution before us is a complete
system of legislative, judicial and executive power. It was designed to supply
the defects of the former system, and I believe, upon a full discussion, it will
be found calculated to answer the purposes for which it was designed." (2
Elliot's Debates, 191-3.)

In the Convention of South Carolina, Mr. Pinckney, (a delegate in
the Federal Convention,) upon the general subject of the nature of the power
proper to be confided to the General Government, said: "He repeated that the
necessity of having a government which should operate upon the people and not
upon the State was conceived to be indispensable by every delegation present,
(in the Federal Convention,) that however they may have differed with respect to
the quantum of power, no objection was made to the system itself."
(4 Elliot's Debates, 251.)

And in the same argument, reviewing the different powers, to all of
which the foregoing remark is applicable, he continues: "As to the further power
of raising troops, it was unnecessary to remark upon it, further than to say
that this is a power the Government at present possesses and exercises, a power
so essential, that he should very much doubt the good sense or information of
the man, who should deem it improper--it is guarded by a declaration, that no
grants for the purpose shall be longer than two years at a time." (Ibid.
255.) It is obvious that Mr. Pinckney must be understood, as saying, that
the power of raising armies was essential to the Government, and that in the
exercise of it, as well as of other powers, it was necessary that the
Government, "should operate upon the people, and not upon the States."
These quotations might be multiplied, but we deem these sufficient to present
clearly the reasoning upon which, (p.362)and
the objects to attain which, the people were urged to adopt the Constitution.
Did it comport with limits appropriate to this paper, we might fortify our
position by large quotations from adverse views presented in the same
conventions, by reason of the fact that the adverse arguments and counsels,
however able, eloquent and earnest, were rejected, in the act of adoption. To
the foregoing we will add a few facts from the Federalist, a publication
in 1788, by Madison, Hamilton and Jay, urging upon the people of the United
States the adoption of the Federal Constitution.

In the fifteenth number, page 67-70, Mr. Hamilton
reiterates the view presented by him in the New York Convention, and in
number twenty-six, page 116, he remarks: "The idea of restraining
the legislative authority in the means for providing for the national
defense, is one of those refinements, which owe their origin to a zeal for
liberty more ardent than enlightened. We have seen, however, that it has not had
thus far an extensive prevalence; that even in this country, where it made its
first appearance, Pennsylvania and North Carolina are the only two States by
which it has been in any degree patronized; and that all the others refused to
give it the least countenance."

Mr. Madison, commenting on the same defects of the Confederation,
reviews the construction and epitomizes the history of several similar systems;
the Amphyctionic Council--the Athaean League and the Germanic Empire. After
enumerating the powers vested in the Germanic Diet, he says: "From such a parade
of constitutional powers in the representatives and head of this Confederacy,
the natural supposition would be, that it must form an exception to the general
character which belongs to its kindred systems. Nothing would be further from
the reality. The fundamental principles upon which it rests, that the Empire is
a community of sovereigns; that the Diet is a representation of sovereigns, and
that the laws are addressed to sovereigns, render the Empire a nerveless body,
incapable of regulating its own members, insecure against external dangers, and
agitated with unceasing fermentation in its own bowels." (Fed. No. 19,
page 85.)(p.363)

Again, in concluding the historical summary, he says: "I make no
apology for having dwelt so long on the contemplation of these Federal
precedents. Experience is the oracle of the truth, and where its responses are
unequivocal, they ought to be conclusive and sacred. The important truth, which
it unequivocally pronounces in the present case, is legislation for communities,
as contradistinguished from individuals, as it is a solecism in theory, so in
practice, it is subversive of the order and ends of civil polity by substituting
violence in the place of law or the destructive coercion of the sword in the
place of the mild and salutary coercion of the majesticy." (Fed. No. 20,
page 92.)

The substance of the lesson thus inculcated by these sages is, that
in the exercise of the powers to raise revenue and to raise armies for the
protection of the country, the Federal arm should be lengthened and strengthened
as to enable the Government to reach individuals, instead of registering edicts
to be enforced upon them by the States, if in their sovereign discretion
they should choose to do so. Since then, with these objections urged upon
the one hand and answered on the other, with all possible clearness and force,
the people of the several States adopted the Constitution, what is the just
conclusion as to their intention regarding the clauses under consideration?
Clearly it would seem to transfer the entire powers to raise revenue and to
raise armies for the use of the General Government from the States to that
Government, to place them side by side with the war-making power. But to make
the transfer complete it was necessary that it should embrace touching revenue,
the power to enforce payment, and touching armies, that of compulsory
enrollment.

Armies it is said may be raised by voluntary enlistment, so revenue
may be collected by voluntary payment; yet all concede that the intention was,
to grant the power of enforcing payment. Then why not pari passu with it,
that of compulsory enrollment. The grants are both expressed in general
comprehensive terms inseparable; the Government bereft of either, can not
possibly make the other available. Then why subject them to the different rules
of construction? (p.364)The people of the
Confederate States, when they came to perform a similar act, had received
additional historical enlightenment. They learned from the history of the
intervening period, that during the last war with England, there had been
convened at Hartford a Convention with a view to the organized opposition of
several States to a war in actual progress--that the Governors of several of
those States had boldly denied the power of the Federal Government to call their
militia beyond their respective boundaries. They were thus taught that
refractory Governors and recusant States, were to say the least
possibilities. They might readily infer that States which could not be
relied upon for militia service were scarcely reliable for army
requisitions.

It thus appears that, with the same end in view, guided by the same
and additional historical lights, and prompted by the further consideration
that, in the very hour of their action, the cloud of terrible war hung
portentously over them, the people of the Confederate States adopted,
quoad these powers, the same Constitution. Our conclusion is, that the
power of raising armies by compulsory enrollment, was necessary to the
attainment of the end, that it was seen by them to be so; that they intended by
the terms used to grant it, and consequently that it is no violation of the
spirit of the Constitution.

That the grant of this power in the plenitude claimed by the
Congress, and conceded by this Court, "is incompatible with original unabridged
State sovereignty, is a self-evident truth, for it is a very high political
power."

But we are precluded this test by the Act of the States partitioning
between themselves and the Confederate Government the powers which, aggregated,
make absolute sovereignty. The true test is, whether it be the exercise of a
delegated or an usurpation of a reserved power. We hold that it is the former,
and therefore compatible with the large residuum of sovereignty which the States
intended to retain. If the true construction of the Constitution be, that in
deference to State sovereignty the Confederate Government must depend upon the
separate, unconcerted action of the several (p.365)States for the exercise of powers granted to it in
general comprehensive terms, it is but the shadow of a government, the
experiment of Confederate Republics must inevitably fail, and the sooner it is
abandoned the better.

The alternative then remaining to the advocates of Republican
Government will be either the separate nationality of the States, each facing
the great powers of earth in its pitiable imbecility, or the obliteration of
State lines and the formation of a consolidated republic.

It is believed, however, that construing the Constitution by a just
and intelligent discrimination, unbiased by jealous fears on either hand, the
existing happy mean, may be made to work safely and beneficently. Nevertheless,
if it be true that the exercise of this power, as we construe it, "would be
subversive of the State Governments or might be made so," then indeed, is
it violative of the spirit of the Constitution. That such is its character, say
its opponents, is apparent from the following view: "If the Congress have the
power to enroll and force into the army the citizens of the States, they may
enroll their Governors, Legislators, Judges and Ministerial officers, and thus
annihilate civil government within their borders." It seems not to have occurred
to the objectors, who conceding that the power, as an incident to that of
raising armies, must ex necessitate rei, exist somewhere, claim it for
the States, that they might enroll the corresponding officials of the
Confederate Government, and thus, in the midst of war, annihilate the agency
charged with its prosecution. Should it be said that this suggestion is the
offspring either of an excited imagination, or of a distrustful hypercriticism,
we must allow the justice of the impeachment. But then, how shall the first
escape the like condemnation, seeing that the two exhibit plain traits of a
common lineage? The earnestness with which this objection has been pressed, and
the countenance given it in high quarters, must be our apology for bestowing
upon it graver and more extended notice.

6th. We have said that the "power to raise armies" is unlimited
as to the use of means; we have not said, it is unlimited as to the
subjects upon whom it may operate. There are (p.366)certain first principles which underlie all governments
and all organized society, the violation of which the framers of governments are
not supposed to intend, and the attempted violation of which will always be
arrested. Says Burlamague, the great expounder of national and civil law: "We
must not confound an absolute power with an arbitrary despotism and unlimited
authority. For from what we have now said concerning the origin and nature of
absolute sovereignty, it manifestly follows, that it is limited, from its very
nature, by the intention of those who conferred it." The Government of the
Confederate States was formed by the sovereign people of the respective States,
for specific, well defined purposes; but they retained for other purposes,
equally well defined, their several pre-existing governments to enable it to
accomplish one of the purposes for which it was instituted. We say they granted
it unlimited power in the use of means to raise armies from their populations.
But if ever that Government shall apply to those means to the enrollment of the
officers and agents, by whom the State Governments are operated, and without
whose agency their machinery must stop, it will manifestly transcend its limit
by violating the intention of those who conferred the power." We quote also to
the same effect, Professor Rutherford. In his Institutes of National Law, after
explaining how despotic governments are produced, he proceeds: "In all these
cases the same body which prescribes what is to be done, having the public force
in its hands to compel the execution of it, is subject to no constitutional
checks or controls; it is possessed of the whole power of government, and
consequently is as absolute as it is possible for civil power to be. I say as it
is possible for civil power to be, because civil power, when it is vested
anywhere, unless in the collective body of the society, however absolute it may
be in some respects, is not so in all. We call it absolute where the
Constitution has provided no constant and uniform control of it, that is, we
call it absolute when it is so in respect of any constitutional restraint. But
still as it is only civil power, it will be limited by its own nature; for as
this is a power formed for certain purposes, it (p.367)can not in its own nature be so far absolute as to be
free either to promote those purposes or to prevent them." (2 Rutherford,
99, 397.)

The preamble of the Constitution recites that "the people of the
Confederate States, each State acting in its sovereign and independent
character, in order to form a permanent Federal Government, establish
justice, insure domestic tranquillity, and secure the blessings of liberty,
* * * do ordain and establish this Constitution," etc.

Now, it is apparent that whenever the government thus established
shall use a power granted to it, so as to annihilate, suspend or obstruct the
State governments, and charged with the administration of internal domestic
polity, with "establishing justice" between man and man, it will "prevent the
purposes for which it was established," and so exceed its limits. Sir William
Blackstone affirms that the law of nature is superior to civil power, and that
"no human laws are of validity if contrary to it." (1st Blacks. Com.
41.) Vatel says: "The law of nations limits the civil power."
(Vatel's L. N., preliminary sec. 9, page 51.)

We learn from these commentators (of acknowledged authority) that
civil power, even in despotic governments, is held in and restrained within
limits by great first principles, or by limitations inherent in each peculiar
system. Were there no more certain or definite security in our case we might
conclude that a government administered by agents, chosen at short intervals by
the people of the several States, and therefore responsible to them, would
respect these universally recognized limits of even irresponsible power. But
there are in the Constitution itself express limitations concerning this point.
The sixth clause of the 6th Article is in these words:
"The power not delegated to the Confederate States by the Constitution, nor
prohibited by it, to the States, are reserved to the States respectively, or to
the people thereof."

As a general grant of power includes the means necessary to its
exercise, so a general reservation of power includes its necessary
instrumentalities. As no interference of State authority, with the exercise of
granted powers, should be (p.368)permitted, so
no suspension or obstruction by Confederate authorities of reserved powers
should be permitted.

Without descending to particulars, we remark that, that whole class
of powers not delegated to the Confederate States (and it is a large one)
requires governmental functions which were previously in full exercise. Any
interference of these would violate this clause. Again, the fourth clause, third
section, fourth article, reads thus: "The Confederate States shall guaranty
to every State that now is, or hereafter may become, a member of this
Confederacy, a republican form of government," etc. Can a republican form
of government be maintained without the necessary instrumentalities? If, by any
act of the Confederate Government, such instrumentalities, whilst in the
exercise of their proper functions, within any State, were forcibly withdrawn,
would not that act violate the constitutional guaranty?

In the populations of the States there is ample scope and verge for
the exercise of the power in question without invading the departments of the
State governments. So far the Congress have recognized the limit here pointed
out, by an Act of exemption directory of their enrolling officers. We have said
that they may be safely trusted for its observance, and we now add, that in our
opinion, if ever regardless of it, the judicial interposition sought and refused
in this case might properly be invoked. Our conclusion, then, is, that as to the
use of means the power is unlimited, but clearly limited so as to exempt the
civil officers of the several States.

Such is the construction we give to the Constitution, and we now
cite, in addition to those previously cited on particular points, high
authorities, which seem to us to cover the whole ground. Judge Story, who by his
judicial opinions, and by his voluminous commentaries on the law, has
established a wide and exalted reputation as a jurist, and whose clear legal
vision was never jaundiced by political aspirations or party associations, has
treated this subject fully, both in its historical and political relations. We
commend to the impartial inquirer his entire commentary on the clause in
question, from section 1173 to 1187 inclusive, commencing (p.369)on page 64 of the 3d volume of his Commentaries on the
Constitution of the United States. Our quotations must necessarily be limited.
In section 1174, page 64, volume 3, he remarks: "The power to raise
armies is an indispensable to the power to declare war, and the latter would be
literally brutum fulmen without the former, a means of mischief without a
power of defence. Under the Confederation, Congress possessed no power whatever
to raise armies, but only "to agree upon the number of land forces, and to make
requisitions from each State for its quota," etc. It will be observed that the
learned commentator considers the grant under the old Confederation "no
power whatever to raise armies." But if the present Constitution does not
give the power to coerce individuals, it will be exceedingly difficult to
appreciate the gain of power. After giving a summary of the arguments adduced
for and against the power, whilst the Constitution was before the people of the
States for their adoption or rejection, he adds, (section 1178
inclusive), "indeed, in regard to times of war, it seems utterly
preposterous to impose any limitation upon the power, since it is obvious
that emergencies may arise which would require the most various and
independent exercise of it. The country would otherwise be in danger of
losing both its liberty and its sovereignty from its dread of investing the
public councils with the power of defending it. It would be more willing to
submit to foreign conquest than to domestic rule. But in times of peace the
power may at last be equally important, though not so often required to be put
in full exercise." In 1841 Mr. Monroe, then Secretary of the War Department,
presented to the Congress a plan for the increase of the army, involving
compulsory enrollment. For this plan see 7 Niles Weekly Register,
294. Whilst his plan was under consideration, Mr. Monroe addressed to the
Chairman of the Committee on Military Affairs a letter, from which we extract as
follows: "The idea that the United States can not raise a regular army in any
other mode than by accepting the voluntary service of individuals is believed to
be repugnant to the uniform construction of all grants of power, and equally so
(p.370)to the first principles and leading
objects of the federal compact. An unqualified grant of power gives the means
necessary to carry it into effect. This is an unusual maxim which admits of no
exception. Equally true is it that the conservation of the State is a duty
paramount to all others. The commonwealth has a right to the services of all its
citizens, or rather the citizens composing the commonwealth have a right
collectively and individually to the service of each other to repel any danger
which may be menaced. The manner in which the service is to be apportioned among
the citizens, and rendered by them, are objects of legislation. All that is to
be dreaded in such case is the abuse of power, and happily our Constitution has
provided ample security against that evil. The limited power which the United
States have in organizing the militia may be urged as an argument against their
right to raise regular troops in the mode proposed. If any argument could be
drawn from that circumstance, I would suppose that it would be in favor of an
opposite conclusion. The power of the United States over the militia has been
limited, and for raising regular armies granted without limitation. There was,
doubtless, some object in this arrangement. The fair inference seems to be, that
it was made one great consideration, that the limitation in the first instance
was intentional, the consequence of the unqualified grant of the second.
(7 Niles' W. R., 138-9.)

George, M. Troup, of Georgia, a man "without fear and without
reproach," a profound statesman, an early, consistent and unrelenting advocate
of State rights, whom the people of Georgia, at least, always delighted to
honor, and felt safe in following, was then chairman of that committee. As
chairman, he reported a bill for the increase of the army, based upon Mr.
Monroe's recommendation, and supported by an argument from which we extract the
following: "But is there no mode to which you can resort for filling the ranks
but voluntary enlistment; I would be extremely sorry if we could not. I have
always thought this government, when administered in the true spirit of the
Constitution, the strongest government in the world, even for the purposes
of war; but (p.371)if the doctrine set up of
late be true, this is the weakest and most contemptible government on earth; it
is neither fit for war or peace, it has failed of all the ends for which
governments are established. It can not be true that this government, charged
with the general defense, authorized to declare war and to raise armies, can
have but one mode of raising armies, whilst every other government that has
ever existed has had an absolute power over the population of the country
for this purpose, and has actually exercised it. But this question is not
properly before the House, and I will not go into an argument to show that you
can, like other governments, resort to other modes of raising armies than that
of voluntary enlistment; that you can resort to classification and draft, to
classification and penalty, or any other mode which a sound discretion may, in a
particular state of the country, dictate and justify. All I intend to say at the
present is, that you have an absolute power over the population of the country
for this purpose, and that in the present state of the country it is wiser to
resort to classification and draft than to resort to the bill from the Senate;
the one will give the men certainly expeditiously; the other will not."
(7 Niles' Weekly Register, 79.)

Thus sustained by cotemporary and subsequent expositions of the
Constitution, we rest upon our conclusions undisturbed by any lingering doubt.
And it is a high gratification, that in the crisis of our fate as a nation, when
flagitious war is desolating our country, we are enabled, in perfect consistency
with the obligations of official duty, to "stay up the hands" of our Confederate
authorities in the wise and timely exercise of a power expressly granted.

We therefore unanimously adjudge that the judgment of the Court
below be affirmed.

Let the judgment be affirmed.

[347.1]POWERS OF THE GENERAL GOVERNMENT AND OF THE STATE
GOVERNMENT. "In a former case (Jeffers v. Fair, yet unpublished) we held
that the Confederate Government can not, in the exercise of the power "to
raise armies," take from a State any civil officer actually employed in the
functions of its government. We have as little difficulty in holding that
no State government can call into the field, for active service as a
militiaman, an officer of the Confederate Government, duly appointed, and
actually engaged in his official duties, under a constitutional Act of the
Confederate Congress. If, in virtue of her seperate sovereignty, any State may
rightfully claim of her confederates the unobstructed operation of the machinery
of her established government, so they, in virtue of the compact, may, with
equal right, claim of her the like unobstructed operation of the machinery of
their common government, established by consent of all." Cobb
v. Stallings, 34 Ga. 76.